Ruling against Post writers overturned
A British Columbia judge wrongly decided three National Post writers defamed a prominent climate scientist, and a new trial is required to fix the errors, according to the British Columbia Court of Appeal. In the case brought by Andrew Weaver, now leader of the B. C. Green party, the trial judge’s key mistake was to determine the allegedly defamatory meaning of four separate articles by reading them together, as a whole, and then assigning j oint liability to all the authors, the court ruled Friday.
“For Dr. Weaver to establish a cause of action based on a combined reading of the articles he needed to rely on extended defamatory meaning by innuendo, and to prove joint liability with respect to its publication,” reads the judgment, written by Madam Justice Gail Dickson on behalf of a unanimous three- judge panel. “In sum, in my view, the judge’s erroneous approach t o combined def amatory meanings was pervasive and inextricable from her individual findings.”
The decision overturns t he 2015 f i nding of defamation, f or which t he Post was ordered to publish a retraction and pay Weaver $ 50,000. No retrial has been scheduled. “Fair comment for columnists and opinion writers is a pillar of j ournalism and we feared the original judgment could have had a chilling effect,” said Anne Marie Owens, t he Post’s editor- i n- chief. “We are delighted with this ruling, and will continue to fight for important press freedoms.”
“Wear every pleased with the victory and happy that the errors in the trial judgment will be corrected ,” said Dan Burnett, a lawyer who represents the Post.
The Post was unable to reach Weaver on Friday.
The articles were written by Terence Corcoran, Peter Foster and Kevin Libin. Between them they wrote four articles t hat mentioned Weaver, which were published in the National Post, the Financial Post and FP Magazine in late 2009 and early 2010.
At the time, Weaver was Canada Research Chair in climate modelling and analysis at the University of Victoria. He’d also contributed to the UN Inter governmental Panel on Climate Change.
All were about the current state of climate science and the political response to it, specifically about the consequences of Climategate, a scandal over the leak of emails from the University of East Anglia that gave a glimpse into the correspondence of the scientists preparing the IPCC reports.
The articles also followed two 2008 break- ins at Weaver’s campus office at the University of Victoria. A recurring theme in the disputed articles was Weaver’s purported suspicion that agents of the oil industry were behind these crimes, and how this could distract the public f rom turmoil within the climate- science community, brought about by the leak of the East Anglia emails.
As t he new ruling describes it, Weaver’s counsel presented each of the four articles as individual expressions of defamation. “There i s no pleading of conspiracy or other concerted action implicating the author of one article in the defamatory expression of another,” it reads. The National Post similarly defended each article individually, claiming the defence of fair comment.
Emphasizing t he context of Climategate, Justice Emily Burke found in her original decision the Post’s writers “espouse a skeptical view of climate change” that led them to deliberately create a negative impression of Weaver. She decided t hat t he ar t i cl es, “r ead together, were defamatory because they supported inferences that he is professionally incompetent, deceitful and unethical.”
She declined to award punitive damages as she did not find malice in the articles, but she did order the Post to remove them from the Internet.
“I conclude as a matter of law the words in the articles at issue were capable of defaming the plaintiff, and as a question of fact they have done so,” Judge Burke’s decision read.
She noted the articles had a “distinct overlap,” and determined their allegedly defamatory meanings “based on a combined reading of all four articles.” The reasons f or this approach were not clear to t he appeal j udges, and by analyzing the articles together — absent a claim of conspiracy or concerted action — Judge Burke made a legal error that can only be fixed by a retrial, the appeal court ruled.